Let’s Rein in the Lawless Office for Civil Rights

John Fund, writing in the National Review last week, drew attention to the vote in Congress last year to increase by seven percent the $100 million budget of the Office for Civil Rights (OCR) in the Department of Education. Fund is especially critical of the Republican Congressmen whose vote seemed to reflect bizarre indifference to OCR’s role in creating a destructive regime of progressive ideology. Lacking statutory authority for many of its actions, OCR resorted to extras-procedural maneuvers such as “Dear Colleague” letters that superficially offer only “advice,” but are in reality backed by a hard threat of withdrawing federal funding from schools and colleges that do not obey.

OCR is notorious for its decisions in the last few years to lower the standard of evidence needed to convict individuals accused of sexual assault; to expand dramatically the definition of sexual harassment; to eviscerate due process for the accused; to transfer to Title IX coordinators vast new powers; to collapse the functions of investigator, counselor to both complainant and accused, judge, jury, and enforcer into a single extra-legal office; and to invent the new category of transgendered rights in a novel extension of Title IX of the Higher Education Act.

We join John Fund in deploring the decision of Congress to reward OCR’s egregious behavior with even more funding. Last year’s seven percent increase is not the end of the story. Fund cites Senator Dean Heller (R-NV) as one of 22 senators who proposed in May 2016 increasing OCR’s budget by 28 percent. That idea collapsed when OCR invented out of thin air its new “Dear Colleague” standard for transgendered bathrooms, locker rooms, and showers, but even after that Republican senators have supported a three percent increase in OCR’s budget.

Congress operates in mysterious ways. We might charitably guess that conservative legislators have struck some deal with their progressive colleagues to the effect that the spigot for OCR will continue to flow provided some project favored by conservatives is also funded. NAS is not close enough to the corridors of power to form a close guess as to why leaders elected to protect individual rights and liberties and the rule of law would be willing to cast crucial votes in favor of a lawless regime of identity-group authoritarianism.

NAS has an additional interest in these developments. As Fund points out, Gail Heriot along with Peter Kirsanow wrote a long letter to the chairmen of the Senate and House Appropriations Committees, Thad Cochran and Hal Rogers. The letter drew attention to OCR’s misbehavior and called on Congress not to increase OCR’s budget. Heriot and Kirsanow serve on the U.S. Civil Rights Commission, and Heriot is also a member of the board of directors of the National Association of Scholars.

Not only did the appropriation committees fail to heed the Heriot-Kirsanow counsel, but the Senate took the gratuitous step of adding to its budget report a small measure slapping them down by directing them not to send any more letters on U.S. Civil Rights Commission letterhead.

We at the National Association of Scholars deeply regret the decisions by Congress to enable the continuing mischief by OCR. There have been numerous expressions of outrage by members of the public and by institutions at OCR’s power grabs and poor judgment. We believe that outrage is warranted and that members of both parties in Congress should act to curtail OCR’s self-granted license to issue rules that lack any legitimate basis in law. We also deplore the Senate’s treatment of Gail Heriot and Peter Kirsanow who, more than any other Civil Rights Commissioners, have paid fair-minded attention to a new swarm of abuses stemming from OCR’s aggressive political agenda. Their rights should be restored in the next legislative action on these matters—which we hope will also include a substantial decrease in funding for OCR.